Gaines v. State

• Decision Date: 08 July 2021
• Docket Number: A21A0666
• Citation: 861 S.E.2d 457,360 Ga.App. 546
• Court: Georgia Court of Appeals
• Parties: GAINES v. The STATE.

360 Ga.App. 546

861 S.E.2d 457

GAINES

v.The STATE.

A21A0666

Court of Appeals of Georgia.

July 8, 2021

Kathleen Strang, for Appellant.

Jared Tolton Williams, District Attorney, Joshua Bradley Smith, Assistant District Attorney, for Appellee.

Mercier, Judge.

Following a bench trial, Gregory Gaines was convicted of aggravated assault and aggravated battery, and he was sentenced to two concurrent 20-year prison terms. Gaines appeals, asserting in his sole claim of error that the trial court erred in failing to merge the two offenses at sentencing. Because the indicted offenses merged as a matter of fact, we affirm Gaines's judgment of conviction for aggravated battery, vacate his conviction for aggravated assault, vacate his sentence, and remand the case for resentencing.

Viewed in the light most favorable to the verdict, see Anderson v. State , 352 Ga. App. 275, 277 (1), 834 S.E.2d 369 (2019), the evidence shows that on July 5, 2014, Gaines was an inmate at the Augusta State Medical Prison, where the victim worked as a corrections officer. While the victim was supervising the inmates in a dormitory that day, Gaines grabbed her around the neck, hit her in the face, and dragged her toward a metal bench in the dormitory's common area. When they reached the bench, Gaines slammed the victim's forehead on the bench and continued to hit her multiple times. Other inmates eventually pulled Gaines away from the victim, and she ran from the building. The victim suffered a fractured cheekbone, a broken nose

, a concussion, and multiple lacerations during the attack.

Gaines was indicted for the aggravated assault (Count 1) and aggravated battery (Count 2) of a correctional officer. The trial court found him guilty of both charges, sentenced him on the two offenses, and denied his subsequent motion for new trial. Gaines now argues that the trial court should have merged the offenses prior to his conviction and sentencing. We agree.

"Whether offenses merge is a legal question, which we review de novo." Regent v. State , 299 Ga. 172, 174, 787 S.E.2d 217 (2016) (citation and punctuation omitted). Although a defendant may be prosecuted for multiple crimes arising out of the same conduct, "[h]e may not ... be convicted of more than one crime if ... [o]ne crime is included in the other[.]" OCGA § 16-1-7 (a) (1). A crime is included in another if:

(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or

(2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

OCGA § 16-1-6.

Count 1 of the indictment charged that Gaines committed aggravated assault on a correctional officer by using his hands (objects that when used offensively against another person were likely to result in serious bodily injury) to "strike [the victim's] face repeatedly and ... to strike [the victim's] head against a bench resulting in a concussion, a broken cheekbone and nose, swelling, lacerations and scarring." Count 2 alleged that he committed aggravated battery against a correctional officer by maliciously causing her bodily harm "by seriously disfiguring a member of her body, to-wit: her face, by striking her face repeatedly and striking her head against a bench resulting in a broken cheekbone and nose, swelling, lacerations and scarring."

By their very terms, Counts 1 and 2 accused Gaines of committing aggravated assault and aggravated battery through the exact same conduct — by repeatedly striking the victim's face and by striking her head against the bench. The only difference between the indicted crimes was "the seriousness of the injury or risk of injury suffered...